Survey says: patent attacks scare off customers, kill business

62 percent of patent suits now filed by "trolls," who often attack customers, too.

A new survey of in-house lawyers is adding some heft to the claim that patent attacks, especially by so-called "trolls," are hurting the economy. Professor Colleen Chien of Santa Clara University revealed the results of her survey of 116 in-house lawyers today, and it shows that patent trolls—or companies that exist simply to litigate patents—are more prevalent than one might think.

Chien led off her brief talk by laying out the scope of the problem. Fully 62 percent of the patent lawsuits brought in 2012 were filed by trolls, which she calls Patent Assertion Entities or PAEs, the same nomenclature used by the government.

And within that giant group of suits, the trends don't look good. Traditionally patent lawsuits were filed against large tech companies, which were seen as the most lucrative targets. Increasingly, the trend is that trolls are going for "low-cost, low-risk patent assertion," Chien said, and they're often funded by investors. And increasingly, the targets go beyond the tech sector—to retailers, restaurants, and others.

Chien reached out to a variety of in-house counsel to ask them how this proliferation of patent lawsuits was affecting their businesses. "In some ways this was like a customer survey," said Chien at an SCU legal conference on Friday. "How are these [patent] services performing for you?"

More than 90 percent of the lawyers said that, unsurprisingly, troll attacks were expensive and distracting. 96 percent said the suits had a financial impact on their company, and 95 percent said it had distracted from their "core business."

Smaller groups of lawyers reported more alarming results. A full quarter of the respondents said they had lost customers or revenue. More than a third, 38 percent, said they had modified their products because of patent claims. Eight percent said they had delayed new hires, and eight percent also said they had exited entire business lines because of patent attacks.

Perhaps most stunning, 82 percent of the companies said their customers had been subjected to patent troll demands, for using or implementing their products. Increasingly, trolls are going after end-users of products, making relatively "small" demands on small and medium-sized businesses. (A classic example are the six-lettered shell companies demanding $1,000 per worker from businesses just for using scanners.)

Chien's survey also asked what kinds of reform the lawyers would like to see. Some reforms were seen as effective: for example, limiting discovery was a tactic seen as "somewhat" or "very" effective by 77 percent of respondents. They still wanted to see punishments for those who gamed out the discovery process. "It all hinges on how difficult the other side wants to be," wrote one surveyed lawyer.

Unsurprisingly, the lawyers wanted cases to be less costly and to move faster. 76 percent said that a timely decision on "summary judgment" motions—when one side or the other attempts to win without a trial—would be a "very effective" change. A strong majority of in-house lawyers also wanted to see their lawsuits put on hold while patent reexaminations proceeded. Around half thought timely transfer decisions and limits on how many claims are in play would help as well.

More in-house lawyers tended to think those types of interventions that come early in a case would be more helpful than remedies that come after the fact, like damages reform or fee-shifting. Still, the hunger was for reform on every front. Other changes asked about were "end-user immunity" or reforms that would block trolls from accessing the International Trade Commission, a venue for patent fights that is supposed to be limited to "domestic industries" but has been increasingly friendly to bare-bones patent licensing companies.

The survey comes at a time when reforms to the patent system are being considered more seriously than ever before. A bill that would require fee-shifting in patent troll cases is being considered in Congress currently, and a second bill expanding how patents can be fought at the Patent Office is expected to be introduced in the Senate on Monday.

As noted above, Chien's survey included 116 in-house counsel from around 100 companies, mostly in the tech sector. While some small companies were included, the majority of the respondents worked at larger companies with $100 million or more in revenue.

Troll lawsuits against consumers will basically destroy consumer confidence in purchasing tech products, for fear of being ruined in picking out a printer or phone whose patents may shift hands into the grasp of a greedy lawyer.

This needs to be addressed, as it threatens the health of the economy as a whole.

Yes, patent lawsuits are hurting the economy, especially the hiring and growth potential of small businesses. Unfortunately, until it starts affecting the bottom line and campaign contributions of our government representatives, it's not going to change.

I recently heard a talk by the CEO of a small tech company (Ars has mentioned them several times), and he said the thing his company was the most afraid of was patent trolls, as there's absolutely nothing you can do to defend yourself against them.

The system currently is very hostile to small companies, and no more friendly to large companies (but a loss is highly unlike to be fatal to a large company, while it's highly likely for a small one). JPhillips173 has a point in that reform would likely end up favoring the larger companies, but that might still be a net win (and the best we can hope for). Of course, seeing how incompetent the government is... they might just find a way to make it worse for small & large alike (most of them are lawyers... anything that results in more lawsuits they might just view as a good thing).

Patent suits against end-users is pretty low of the latest troll tactics and should be eliminated entirely in my opinion. How these were even allowed to proceed in the first place is beyond me, and puts the onus on every business owner that uses a product to perform extensive research and implement policies that are detrimental to business for everyone.

This is not a cost of doing business issue either since there is no real way for a business owner to determine what patents a product that is bought off the shelf are subject to without greatly added cost. And that is prohibitive for many start-ups and even established businesses since it can limit hiring practices and expenditures related to expansion or purchasing.

Simple reforms that exempt end-users could go a long way toward eliminating many of these suits. Additionally, PAEs rewards in patent suits should also be limited since they don't produce a product, and I think the patent itself should be turned over to the actual implementer of that idea if the PAE does win.

That last would go do great wonders for limiting trolls, and prevent them from just sitting on a patent and doing nothing to advance the public good.

Rule #1 should state no company shall sell a product in which all aspects are not properly licensed. If company does sell a product that is later to be found in violation of a patent it will be the manufacturers sole responsibility to resolve the issue, and no burden should be passed to the purchaser.

I don't necessarily disagree with these opinions, but honestly, are these results a surprise? In-house counsel have a vested interest in doing away with patent trolls. It's no surprise they want to limit discovery and speed up summary judgments - defendants always want to limit discovery and speed up summary judgment. As far as putting a case on hold while patent claims are reexamined - if you're a defendant in any case, and you could demand a separate proceeding that could potentially torpedo the main case against you, wouldn't you want that? And really, if you spend any time at all dealing with lawyers isn't that distracting from your "core business"?

Again, not really disagreeing with the opinions of these folks, just saying that there are no surprises here when we're talking about patent trolls. But changing a rule as to all patents for the sake of killing off patent trolls can have unforeseen or unintended consequences in other patent cases.

The way I see it, going after end users is criminal.If someone else owns a patented technology, I am not allowed to manufacture and sell that technology. so far so good, but there is absolutely nothing preventing me from using a technology that is patented, because if there was, we'd be breaking the law just waking up in the morning when the alarm goes off. So when someone tries to go after end users, like for example that scanner thing, it is nothing but extortion and fraud.Fraud because they know damn well they have no legal grounds for their claims.Extortion because this is basicaly a lawyer version of "pay up, or else...". in this case it's "pay up, or else it's going to cost you much much more."

The problem of patent trolls may be like a virus that eventually dies out because it kills it's host.

To some extent. Patent trolls will readily drink the well dry, and take a shit in there, before moving on to their next wheeze. The move to attacking end users is a very bad sign. They're already moving in to the nickel and fine phase, and reform is long fucking overdue. I'm not confident in seeing this resolved in a way that doesn't just readdress the balance in favour of incumbents.

I'm in the process of starting a business - a business that engineers and manufactures technology-based products. The potential of being attacked by an intellectual property parasite is my biggest uncontrolled risk. Such an attack would kill the baby in its crib, and this worries me.

Legal counsel in large companies have an incentive to finely tune the situation so that the costs associated with defending against "non-practicing entities" drops to a manageable level, but doesn't go away. If you've ever worked for a large company then you know that managers do not seek solutions that result in a loss of head-count within their own organizations. Policy that benefits the armored big guys may make life harder for the smaller guys, who are soft targets.

From the article, "...Chien's survey included 116 in-house counsel from around 100 companies, mostly in the tech sector. While some small companies were included, the majority of the respondents worked at larger companies with $100 million or more in revenue."

Legal costs that are manageable for an established company are almost certainly beyond the resources of a start-up. Looking at my own situation, I know that even a little bump in the road, if felt earlier enough, would be a terminal event for my nascent business (I can't afford legal fees at rates of $100's of dollars per hour). The cost of responding to any claim of infringement is prohibitive for a small company, and it costs far less to make a series of unsubstantiated claims than it does to mount a single effective defense. Consider the articles on Ars Technica, Techdirt, and Popehat discussing Prenda Law. The financial factors favor of the parasites.

The incentives at work upon policy makers do not favor anyone who can't pay to play.

Rule #1 should state no company shall sell a product in which all aspects are not properly licensed. If company does sell a product that is later to be found in violation of a patent it will be the manufacturers sole responsibility to resolve the issue, and no burden should be passed to the purchaser.

The first portion of your 'rule' is already in place. That's what gives patent-holders their leverage. The problem for someone who is creating a product is essentially the same as the problem for someone buying a product: it's impossible to know whether or not your product infringes any particular patent until it's been taken to court.

Even the most expensive, extensive, and expert patent search might miss a relevant patent. Worse yet, a patent's relevance might not be recognized until years later. Even worse than that, a patent might not be relevant until an additional feature is added to the product (e.g., scanners don't infringe. scanners with save as pdf don't infringe. Scanners which send the pdf via email over the internet do infringe)*, years later.

The second-half of your 'rule' is something that gets proposed from time to time (and may very well end up in Sen. Schumer's bill on Monday). We'll have to see where things go from here.

[edit: *allegedly infringe, according to the patent-holder who is attempting to obtain settlements at a fraction of the cost of going to court to resolve the issue with finality]

Patent suits against end-users is pretty low of the latest troll tactics and should be eliminated entirely in my opinion. How these were even allowed to proceed in the first place is beyond me, and puts the onus on every business owner that uses a product to perform extensive research and implement policies that are detrimental to business for everyone.

This is not a cost of doing business issue either since there is no real way for a business owner to determine what patents a product that is bought off the shelf are subject to without greatly added cost. And that is prohibitive for many start-ups and even established businesses since it can limit hiring practices and expenditures related to expansion or purchasing.

Simple reforms that exempt end-users could go a long way toward eliminating many of these suits. Additionally, PAEs rewards in patent suits should also be limited since they don't produce a product, and I think the patent itself should be turned over to the actual implementer of that idea if the PAE does win.

That last would go do great wonders for limiting trolls, and prevent them from just sitting on a patent and doing nothing to advance the public good.

That's not to mention that under the DMCA, it's actually illegal to determine which patents are in use in a product if the firmware is locked.

I think the law should be changed to put an upfront burden on the patent holder to validate the patent before any action in terms of suing can be made. I.e. Stop a bunch of wasted time. They should pay for the patent office to examine in detail along with the help of the public via public review any patent they want to claim.

My greatest concern with the inept attempts to reform the system so far (AIA) is that they aren't solving the root problem. Someone says the PTO is inefficient in processing time, so they respond by increasing funding to process *more* patents faster. Then someone says we should change to first to file, which results in incentivizing *more* patent filings, thereby negating any net gain in performance you just increased funding for. And now they're focused on the effect of lawsuits, instead of addressing the root of that problem.

The root problem is this:

What innovation both needs and deserves a monopoly that we as a society are willing to give one out?

If I were President or in Congress, here is the solution I would propose:

1) Peer Review All patent filings must be submitted with great specificity, and written in the lexicon of that industry that your peers would clearly understand it, and could replicate your results.

2) Quality ControlCrowdsource scrutinizing the quality of each filing. Online voting to surface the most substantive and innovative ideas to the top of the list.

3) Voter SelectionAlong with your taxes, every taxpayer may vote for up to 50 patents.

4) Awarding MonopoliesWe tally the votes, and award the top 100 patent monopolies per industry, handing them out at the White House in a televised ceremony.

5) Implementation RequirementIf the innovation is not brought to market in 5 years, the monopoly is forfeited, and it goes into the public domain.

One possible solution would be to require that prior to filing the suit the plaintiff demonstrates some kind of actual or intent to manufacture or production of the patented invention, like they have with trademarks. However, this would be counter to the spirit of the entire patent system which is to allow an inventor to prevent others (e.g., big guys) from making what's in his patent without actually having to have the product on the market. Unless you to go back to the days when inventors were required to submit working prototypes. The problem lies with the plaintiffs no longer being the inventor or even the company which originally hired the inventors to develop something, but a third party who bought the patent because of its ridiculous claims. My point is that there are no easy solutions to this obvious problem.

I'm curious why a "practicing", that is an established corporation with a large market share that would be threatened by actual innovation, should be allowed to continue to harass any potential competition with the types of bogus extortion "patent trolls" are accused of doing.

I'll admit the possibility that pharmaceuticals companies may need to protect the costs of human testing, but I have yet to see how patents for inventions do anything but allow innovation to be thoroughly throttled.

I'm getting sick and tired of the bait-and-switch that is going on in industry terminology by defining patent troll as a "non-practicing" entity. That definition very conveniently lets any existing company off the hook to do as much trolling as they like. Some of the very worst patent trolls are not "non-practicing" entities. Why should Apple and Microsoft get excluded as trolls?

Look at how this definition hits someone who comes up with a truly innovative, patentable breakthrough: You try to find a company that would be interested in licensing and producing your invention, since these days doing it yourself is pretty much a non-starter. You talk to a large corporation, explain your idea, which you can do because it is protected by the patent. The company turns around, steals the idea, and starts making it. You sue because they stole your idea, which is patented, and they turn around and say "oh, these evil patent trolls trying to put limits on us productive companies". End result: little innovators lose big time, big corporations can steal what they want from small startups while being free to continue patent-trolling themselves, because they are big enough to be "practicing".

Wake up, people. The issue isn't whether an entity is "practicing" or not; that is irrelevant. The only issue that is relevant is WHETHER THE PATENT IS BOGUS OR NOT. A truly innovative invention should be patentable by anyone. An obvious, trivial application of programming or business methods should NOT be patentable, BY ANYONE.

^^^ I think there's a lot of truth to Yeti's post. Practicing entities have been among the most zealous in applying for, receiving, and asserting weak patents. Hyper-litigious behavior should not be immune to scrutiny just because your company actually sells products.

I'll also take the opportunity to play my broken record one more time. If you operate under the assumption that the existence of patents (and a readily accessible database thereof) actually advances 'the state of the art' through disclosure of legitimate inventions, as originally intended, you might be sadly disappointed. Neither researchers nor companies developing products look to the patent database for inspiration or solid technical advice. It's a morass of shit and everyone knows it.

All of this has a huge impact on the the economy. It's time to get rid of software patents period. Certain other things like patents for big pharma (which I'm not saying should be abolished, but should not be so lobbyist controlled), and super long copyrights need examination.

I don't necessarily disagree with these opinions, but honestly, are these results a surprise? In-house counsel have a vested interest in doing away with patent trolls. It's no surprise they want to limit discovery and speed up summary judgments - defendants always want to limit discovery and speed up summary judgment. As far as putting a case on hold while patent claims are reexamined - if you're a defendant in any case, and you could demand a separate proceeding that could potentially torpedo the main case against you, wouldn't you want that? And really, if you spend any time at all dealing with lawyers isn't that distracting from your "core business"?

Again, not really disagreeing with the opinions of these folks, just saying that there are no surprises here when we're talking about patent trolls. But changing a rule as to all patents for the sake of killing off patent trolls can have unforeseen or unintended consequences in other patent cases.

I think that had you kept going you might have noted with surprise that the survey didn't find that patent trolls cause cancer.

Again with your caveat that almost nobody defends patent trolls (and certainly nobody for more than 5 minutes on Ars before being downvoted into oblivion), this “survey” sounds more like push polling or a way to gather material for political and/or lobbying use. As an ongoing student of social science (I sit on a committee that funds a half dozen papers a year), I can say this doesn't appear designed to actually shine any academic light on the real costs of the current situation, or changes to it.

^^^ I think there's a lot of truth to Yeti's post. Practicing entities have been among the most zealous in applying for, receiving, and asserting weak patents. Hyper-litigious behavior should not be immune to scrutiny just because your company actually sells products.

I'll also take the opportunity to play my broken record one more time. If you operate under the assumption that the existence of patents (and a readily accessible database thereof) actually advances 'the state of the art' through disclosure of legitimate inventions, as originally intended, you might be sadly disappointed. Neither researchers nor companies developing products look to the patent database for inspiration or solid technical advice. It's a morass of shit and everyone knows it.

The weird thing about all these complaints of obviousness is that virtually EVERY legal system requires non-obviousness. (It even has its own Wikipedia entry.) So EVERY patent office has databases of patents; the patents themselves cite the earlier work in order to differentiate the current work from it; defendants essentially ALWAYS try (often, successfully) to invalidate patents for lack of originality; and the law is utterly unambiguous. And yet, most of us have the notion that the most easily-disputed escape from a patent is some monster problem.

Now, nobody likes spending time getting hauled to court and having to defend themselves, the more so when their business could be bankrupted. ANY abuse of the legal system to extort money is inexcusable. But why is originality so widely the problem, instead of actual (possibly completely unintentional) infringement of a valid patent?

Maybe it's our love of the story of getting blindsided; we can all identify with that personally, while few of us are in a position of seeing years of our work swept out from under us. Or that it's bad form for the patent holder to boast about its power, and juries will feel sympathy for defendants who got hit with a gotcha. Whatever, it sure seems odd that we rely on this meme of bogus originality, when it ought to be — and often HAS BEEN — a perfectly adequate defense.

A state legislature can pass *ANY* law they want to. Now whether it will stand up to a challenge in the courts or not is another question entirely...

Note that this is every bit as bad as it sounds. Legislators can (And have!) passed laws that were blatantly in violation of federal and constitutional law, even to the extent of opening their state governments to enormous legal and financial liability. Oh, and the only mechanism that gives any accountability to the legislators themselves is the electoral process.

So if your district/state is full of voters who want to elect idiots who will spend all their time in the legislature voting to outlaw Islam/mandate prayer in school/etc, tough. (Based on personal experience, try checking out what takes up most of the time in legislatures in the south, for example)

So the good news is, yeah a plan to start a legal mess by having a state pass unconstitutional laws is certainly possible, bad news? Good luck trying to do that for anything that would be beneficial.

You'd be wrong. Managers often comb through patents granted to competitors looking for 'inspiration' to pass on to their engineers, i.e. 'why don't we do the same things these other guys are doing; just make it a little different so we don't violate the patent'.

This can especially be true in startups where managers are under pressure from investors to get as much IP as possible, in the hopes that the IP will add to the sale value of the startup.

And that's part of the problem with the patent system... it has gone from a system that was supposed to encouraged innovation, to a financial tool for managing risk and maximizing profits, much like derivatives and credit default swaps. And like derivatives and credit default swaps, the 'value', if any, of IP is hard to quantify.

End user immunity has to be at the top of the list. If a patent-wielding entity can go for the lowest-hanging fruit, they will - and the average consumer or small business will have no economically feasible option but to pay up.

The weird thing about all these complaints of obviousness is that virtually EVERY legal system requires non-obviousness. (It even has its own Wikipedia entry.) So EVERY patent office has databases of patents; the patents themselves cite the earlier work in order to differentiate the current work from it; defendants essentially ALWAYS try (often, successfully) to invalidate patents for lack of originality; and the law is utterly unambiguous. And yet, most of us have the notion that the most easily-disputed escape from a patent is some monster problem.

Now, nobody likes spending time getting hauled to court and having to defend themselves, the more so when their business could be bankrupted. ANY abuse of the legal system to extort money is inexcusable. But why is originality so widely the problem, instead of actual (possibly completely unintentional) infringement of a valid patent?

Maybe it's our love of the story of getting blindsided; we can all identify with that personally, while few of us are in a position of seeing years of our work swept out from under us. Or that it's bad form for the patent holder to boast about its power, and juries will feel sympathy for defendants who got hit with a gotcha. Whatever, it sure seems odd that we rely on this meme of bogus originality, when it ought to be — and often HAS BEEN — a perfectly adequate defense.

I'm not quite sure what your point is, but the problem is very simple: people in the industry can see every day that patents are granted for the kinds of normal design things a programmer just does in the course of a day's work. And so every single one of the tens of thousands of things you do on every job could already be patented by someone else. You don't know, and you can't know, and there is no way in hell you could ever take the time to find out, because these things are nothing special, just the list of things you do as you go along. So this is a risk you can't get rid of, and it can put you out of business instantly, like winning the lottery in reverse, except with much better(worse) odds.

So it is clear that whatever standard of obviousness is being used, it isn't working, because if practically EVERY SINGLE STEP that a programmer takes can be encumbered by patent trolls (because a patent on something like that is bogus on its face), the whole industry grinds to a halt. And this IS affecting the industry, to a huge degree. One of the main reasons startups pretty much must have giant piles of cash to get started these days (i.e. venture capital or something) is to have enough of a cash hoard to be able to pay the monstrous legal costs of defending yourself against patent trolls. You have to plan on riding out giant multi-year lawsuits, with teams of lawyers working full-time basically permanently, at a gazillion $/hour each. The chilling effect on startups is huge. Of course, many try without that money... and they are often fresh troll meat.

Any working programmer with wide experience will laugh out loud at anyone who tries to deny that most software patents are "obvious" and therefore bogus. We know it when we see it, and we are the ones directly affected by the problem.

If you want to go down that road, fine. - Motorola sued Apple first. But you conveniently left Motorola out of your list.

Companies enforcing patents has been going on for a long time. If the argument is that there should be no patents, then that would not just affect Apple and Microsoft enforcing patents.

"If the argument is that there should be no patents" Wut? My name is among those on a significant patent. I just think they should be a mark of distinction, measured by "unobviousness", not granted like the time-stamp at the end of the workday. Patents need to be unusual landmarks in the landscape, not stones to trip your every step.

If the Patent Office doesn't get a grip on this escalating troll problem how long will it be before the "Best Buy's" of the world hire actuary statisticians to review a product's patent history liability exposure prior to the store selling the item.

Then at check out the sales associate not only offers the "extended warranty coverage" for X dollars but then the "patent liability protection coverage" for XX dollars.

Exactly this! Which begs the question - why does Joe Mullin and Ars Technica editors continue to uncritically reproduce the manipulative corporate rhetoric of "patent trolls" when the real problem is corporate abuse of bogus patents? Apple, Microsoft and the other big guys are the worst patent trolls that ever existed but somehow Joe thinks the definition should be limited to non-practicing entities. Simplified, misguided worldview much?

Ars technica and its commenters aren't saying that there isn't an issue with corporate abuse of patents... just that this abuse has never taken the form of Microsoft or Apple knocking on a small business' door (or indeed single individuals) and saying "You owe us 40 grand for having bought this product we sold you, see you in court."

I recently heard a talk by the CEO of a small tech company (Ars has mentioned them several times), and he said the thing his company was the most afraid of was patent trolls, as there's absolutely nothing you can do to defend yourself against them.

The system currently is very hostile to small companies, and no more friendly to large companies (but a loss is highly unlike to be fatal to a large company, while it's highly likely for a small one). JPhillips173 has a point in that reform would likely end up favoring the larger companies, but that might still be a net win (and the best we can hope for). Of course, seeing how incompetent the government is... they might just find a way to make it worse for small & large alike (most of them are lawyers... anything that results in more lawsuits they might just view as a good thing).

Such fatalism isn't helpful.

Patent-troll suits are a government-created problem that only the government can possibly solve.

I don't necessarily disagree with these opinions, but honestly, are these results a surprise? In-house counsel have a vested interest in doing away with patent trolls. It's no surprise they want to limit discovery and speed up summary judgments - defendants always want to limit discovery and speed up summary judgment. As far as putting a case on hold while patent claims are reexamined - if you're a defendant in any case, and you could demand a separate proceeding that could potentially torpedo the main case against you, wouldn't you want that? And really, if you spend any time at all dealing with lawyers isn't that distracting from your "core business"?

Generally good points, but the last I think I might be able to expand on. From a lawyer's point of view, there is legal work that is related to the company's core business and legal work that is not. Items that are "related to their core business" to laywers include:* co-workers on what they need to do to stay on the right side of the law while doing their job* suing customers / defending suits over alleged breach of contract* helping file patent applications for company innovations* pursuing patent fees for patents the company owns

Defending suits that come from seemingly out of nowhere over patents on things nobody in the company imagined could be patented is not related to their core business -- even if the technology they're using is definitely a part of their core business.

If you don't believe in the patent system in any form you are not who I am talking to.

There is a real reason you cannot let users off the hook in some situations. From time to time a product is legal where it is made but not legal where it is used. If I make something in my country LEGALLY I shouldn't be able to be punished if someone uses it who is not allowed to. If you cannot punish end users you cannot punish illegal use so long as the product could be made ANYWHERE legally.

*As a disclaimer I think I need to note that I am named on a number of patents.

I'm getting sick and tired of the bait-and-switch that is going on in industry terminology by defining patent troll as a "non-practicing" entity. That definition very conveniently lets any existing company off the hook to do as much trolling as they like. Some of the very worst patent trolls are not "non-practicing" entities. Why should Apple and Microsoft get excluded as trolls?

Look at how this definition hits someone who comes up with a truly innovative, patentable breakthrough: You try to find a company that would be interested in licensing and producing your invention, since these days doing it yourself is pretty much a non-starter. You talk to a large corporation, explain your idea, which you can do because it is protected by the patent. The company turns around, steals the idea, and starts making it. You sue because they stole your idea, which is patented, and they turn around and say "oh, these evil patent trolls trying to put limits on us productive companies". End result: little innovators lose big time, big corporations can steal what they want from small startups while being free to continue patent-trolling themselves, because they are big enough to be "practicing".

Wake up, people. The issue isn't whether an entity is "practicing" or not; that is irrelevant. The only issue that is relevant is WHETHER THE PATENT IS BOGUS OR NOT. A truly innovative invention should be patentable by anyone. An obvious, trivial application of programming or business methods should NOT be patentable, BY ANYONE.

1. The proposed bills that I've seen define a non-practicing entity, and your inventor whose patent was stolen by BigBad corp doesn't qualify. If you can find a different example, after reading the criteria for what counts as an NPE, then please do so.

2. Sure the problem is with 'bogus patents'. However, even if we stopped granting them today, we'd still have 20 years of trolling available. Are you seriously telling us all to suck it up for 20 years?

I'm getting sick and tired of the bait-and-switch that is going on in industry terminology by defining patent troll as a "non-practicing" entity. That definition very conveniently lets any existing company off the hook to do as much trolling as they like. Some of the very worst patent trolls are not "non-practicing" entities. Why should Apple and Microsoft get excluded as trolls?

Look at how this definition hits someone who comes up with a truly innovative, patentable breakthrough: You try to find a company that would be interested in licensing and producing your invention, since these days doing it yourself is pretty much a non-starter. You talk to a large corporation, explain your idea, which you can do because it is protected by the patent. The company turns around, steals the idea, and starts making it. You sue because they stole your idea, which is patented, and they turn around and say "oh, these evil patent trolls trying to put limits on us productive companies". End result: little innovators lose big time, big corporations can steal what they want from small startups while being free to continue patent-trolling themselves, because they are big enough to be "practicing".

Wake up, people. The issue isn't whether an entity is "practicing" or not; that is irrelevant. The only issue that is relevant is WHETHER THE PATENT IS BOGUS OR NOT. A truly innovative invention should be patentable by anyone. An obvious, trivial application of programming or business methods should NOT be patentable, BY ANYONE.

Exactly this! Which begs the question - why does Joe Mullin and Ars Technica editors continue to uncritically reproduce the manipulative corporate rhetoric of "patent trolls" when the real problem is corporate abuse of bogus patents? Apple, Microsoft and the other big guys are the worst patent trolls that ever existed but somehow Joe thinks the definition should be limited to non-practicing entities. Simplified, misguided worldview much?

The term should be limited to litigants who lie in wait for the technology they supposedly have patented to be widely used by third parties, without ever having tried to license the technology for use. That is abuse of the patent system. The purpose of the patent system was to provide a means for inventors of technology to profit through licensing, not to profit through lawsuits only.